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GENEVA ATVARD. 



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PETITION OF E^V.^IETCALF 



SHIP DELPHINE 



To the Honorable Senate and House of Repre- 
sentatives of the United States of America, in 
Congress assembled : 

The petition of the undersigned, builder, part owner, 
and agent for all the owners, of ship Delphine, for- 
merly of Bangor, respectfully represents that said ship 
ivas, on the 29th day of December, A. D. 1864, totally 
destroyed by the officers and men of the so-called insur- 
gent cruiser, " Shenandoah" that all the facts are such 
that he believes it just, reasonable and expedient that 
the owners of said ship be indemnified for their loss 
out of the money received, by the Government of the 
United States by virtue of the award of the Tribunal 
at Genera. 

He therefore humbly prays that legislation may be 
provided which will insure such indemnity. 

E. W. METCALF. 



Mr. Chairman and Gentlemen of the Committee ; 

The government of the United States was in pos- 
session of money received by virtue of the award at 
Geneva, according to the Treaty of Washington. 

The money had been paid by Great Britain to the 
United States, " as the indemnity" for injuries inflicted 
upon this nation in the person of its citizens, through 
the fault of England. 









It was awarded "for the satisfaction of all the claims 
referred to the consideration of the Tribunal."^ 1 ) 

By the Treaty of Washington, and this award, "all 
the claims growing out of the acts committed by the 
several vessels," " generically known as the Alabama 
Claims," were as against England, "fully, perfectly, and 
finally settled."( 2 ) 

My ship Delphine had, through the fault of England, 
been destroyed by one of these vessels. Before her 

(*) "In case the Tribunal find that Great Britain has failed 
to fulfill any duty or duties as aforesaid, it may, if it think 
proper, proceed to award a sum in gross, to be paid by Great 
Britain to the United States for all the claims referred to it." — 
{Treaty of Wash. Art. 7.) — "The Tribunal, making use of the 
authority conferred upon it by Art. 7 of the said treaty, by a 
majority of four voices to one, awards to the United States 
the sum of $15,500,000 in gold, as the indemnity to be 
paid by Great Britain to the United States, for the satisfaction 
of all the claims referred to the consideration of the Tribunal." 
— (Decision and award. Papers relating to Treaty Wash. Vol. 
Jf, ]). 53.) — " It does not appear in the protocols how the arbitra- 
tors arrived at this amount. I am informed that it was reached 
by mutual concessions. The neutral arbitrators and Mr. Adams, 
from the beginning of the proceedings, were convinced of the 
policy of awarding a sum in gross. * * * * We 
therefore devoted our energies toward securing such a sum as 
should be practically an indemnity to the sufferers. Whether 
we have or have not been successful can be determined only by 
the final division of the sum.'' — (Mr. Davis" 1 Report Same Vol. 4- 
p. 8.) 

( 2 ) "The High Contracting Parties engage to consider the 
result of the proceedings of the Tribunal of Arbitration * * 
as a full, perfect, and final settlement of all the claims herein- 
before referred to: and further engage that every such claim 
* * * shall be considered and treated as finally 
settled, barred, and henceforth inadmissible" — (Treaty of Wash. 
Art. 11.) — "And in accordance with the terms of Art. 11 of the 
said treaty, the Tribunal declares that 'all the claims referred to 
in the treaty as submitted to the Tribunal are hereby fully, per- 
fectly and finally settled."''' — (Decisio?i and Award Papers, &c 
Vol. If, p. 53.) 



destruction my government had officially notified the 
government of Great Britain that it would " claim re- 
dress for the injuries which might he inflicted" on me, 
as a citizen of the United States by such destruction. ( 8 ) 
As soon as it had knowledge of the destruction of 
my ship, this government again officially notified that 
it " could not avoid entailing upon the government of 
Great Britain the responsibility for this damage."( 4 ) 

(3) (No. 1171.) 

Department of State, Wash., Dec. 3, 1864. 

Sir : Information has reached this department (from William 
H. Dabney Esq.. the consul of the United States at Teneriffe,) 
to the effect that the British Steamer, Laurel, reported to have 
sailed from Liverpoool. with the pirate Semmes, and one hun- 
dred picked men, met by appointment the English Steamer Sea 
King, at the Desertas of the Madeira, and there transferred to the 
Sea King, Semmes and crew, armament, munitions, and stores. 
and received from the Sea King Captain Corbett and crew, who 
brought her to the Desertas. and who. on the 22d of the same 
month, were landed at Teneriffe for passage home. 

Thus it would seem that the notorious commander of the 
Alabama has again obtained command of a British-built vessel, 
which has been supplied by another British vessel, with men. 
arms, and munitions carried out from a British port, and is now 
at large on the high seas for the purpose of committing depreda- 
tions upon the commerce of the United States. 

I loill thank you to bring the case under the attention of Earl 
Russell, protesting against any such arrangement as that above in- 
dicated, and informing his lordship that if it is correctly stated. 
this government considers that Her Majesty's government may be 
held justly responsible for any losses accruing to citizens of the 
United States, through the depredations of the Sea King. 
I am, sir, your obedient servant. 

William H. Seward. 

Charles Francis Adams. Esq., &c. 

(Correspondence concerning Claims vs. Great Britain, Vol 3, 
p. 380.) 

( 4 ) (No. 1250) Department of State, 

Washington, Jan. 27, 1865. 
Sir : Referring to my despatch of the 3d ultimo, No. 1171, 
in regard to the piratical vessel Sea King or Shenandoah, and to 



My government did claim of Great Britain redress 
for the injuries inflicted on me, ( 5 ) and by the Treaty 

.subsequent coprespondence on the subject, I now transmit a copy 
of a dispatch of the 2,9th of November last, from James Monroe,* 
Esq., the consul of the United States at Rio de Janeiro, contain- 
ing a statement in relation to the destruction of four United 
States merchant vessels, with their cargoes. * * * 
It appears, from the information presented with Mr. Monroe's 
despatch, that, with the exception of the name of the com- 
mander, the representation contained in my No. 1171 is corrob- 
orated. Under these circumstances / have to request you to 
inform her Majesty's government that the United States will claim 
redress for the injuries and losses inflicted on their citizens by the 
depredations of the Sea King or Shenandoah. 

I am, sir, your obedient servant, 

William H. Seward. 
Charles Francis Adams, Esq., &c, &c, &c. 
{Correspondence, Claims, &c. Vol. 3, p. 335.) 

(Adams to Russell.) 

Legation of the United States, 

London. April 7, 1805. 

My Lord: I have the honor to transmit to you a copy of a 
letter addressed to the Secretary of State at Washington, by the 
Consul of the United States at Rio Janeiro. Mr. Monroe, mak- 
ing a report of the depredations committed upon the commerce 
of the United States by the vessel known in the port of London 
as the Sea King, but since transformed into the Shenandoah 
by a process already fully explained in a note which I had the 
honor to address to your lordship on the 18th November last. I 
regret to be obliged to add that this same vessel has been, since 
the date of Mr. Monroe's letter, heard of at Melbourne, from 
which place further details of similar outrages have been re- 
ceived. * . * * * 

Were there any reasons to believe that the operations, carried 
on in the ports of Her Majesty's kingdom and its dependencies 
to maintain and extend, this systematic depredation upon the 
commerce of a friendly people, had been materially relaxed or 
prevented, I should not be under the painful necessity of an- 
nouncing to you,r lordship the fact that my government cannot 
avoid entailing upon the Government of Great Britain the respon- 
sibility for this damage. * * * * 

*Mr. Monroe now represents the 18th district of Ohio, in ths H. R. 



of Washington " fully, perfectly and finally settled" the 
claim, ( 6 ) receiving therefor in the Geneva award full 
satisfaction in money ( 7 ) 

The United .States' commerce is rapidly vanishing from the 
face of the ocean, and that of Great Britain is multiplying in 
nearly the same ratio. Furthermore it is my painful duty to 
suggest that this process is going on by reason of the action of 
British subjects, in co-operation with emissaries of the insur- 
gents, who have supplied from the ports of Her Majesty's king- 
dom all the materials, such as vessels, armaments, supplies and 
men. indispensable to the effective prosecution of this result on 
the ocean. 

So far as I am aware, not a single vessel has been engaged in 
these depredations excepting such as have been so furnished ; 
unless indeed I might except one or two passenger steamers 
belonging to persons in New York, forcibly taken possession of 
whilst at Charleston in the beginning of the war, feebly armed, 
and very quickly rendered useless for any aggressive purpose. * 

I would most respectfully invite your lordship to produce in 
the history of the world a parallel case to this of endurance by 
one nation of injury done to it by another, without bringing on 
the gravest of complications. * * * T am reluctantly com- 
pelled to acknowledge the belief that practically this evil had its 
origin in the first step taken, which never can be regarded by my 
government in any other light than as precipitate, of acknow- 
ledging persons as a belligerent power on the ocean before they 
had a single vessel of their own to show floating upon it. The 
result of that proceeding has been that the power in question, 
so far as it can be entitled to the name of a belligerent on the 
ocean at all, was actually created in consequence of the recognition, 
and not before ; and all that it has subsequently attained of such 
a position has been through the labor of the subjects of the very 
country which gave it the shelter of that title in advance. 

Neither is the whole case stated even now. The results equally 
show that the ability to continue these oj)erations with success 
during the whole term of four years that the Avar has continued, 
has been exclusively owing to the opportunity to make use of 
this granted right of a belligerent in the courts and the ports and 
harbors of the very power that furnished the elements of its ex- 
istence in the outset. In other words, the kingdom of Great 
Britain cannot but be regarded by the government I have the 
honor to represent, as not only having given birth to this naval 
belligerent, but also as having nursed and maintained it to the 
present hour. * * * 



And satisfaction again in the value of the Shenan- 
doah herself, when the government of the United 

In view of all these circumstances, I am instructed, while in- 
sisting on the protest heretofore solemnly entered against that 
proceeding, further respectfully to represent to your lordship 
that, in the opinion of my government, the grounds on which 
Her Majesty's government have rested their defence against the 
responsibility incurred in the maimer heretofore stated, for the 
evils that have followed * * have now failed. * * * 

Charles Francis Adams. 
Right Hon. Earl Russell, &c, &c, &c. (Same p. SJfi.) 

( 5 ) The claims as stated by the American Commissioners may 
be classified as follows: 

1st. The claims for direct losses growing out of the destruction 
of vessels and their cargoes, by the insurgent cruisers. * * * 
So far as these various losses and expenditures grew out of the 
acts committed by the several cruisers, the United States are en- 
titled to ask compensation and remuneration therefor before this 
tribunal. * * * further subdivided into : 

First. Claims for destruction of vessels and property of the 
Government of the United States. 

Second. Claims for the destruction of vessels and property 
under the flag of the United States. 

Third. Claims for damages or injuries to persons growing out 
of the destruction of each class of vessels. In the accompany- 
ing Vol. 7, the Tribunal will find ample data for determining the 
amount of damage which should be awarded. (Amer. Case. 
Amer. Ed. p. 185.) 

Claim for my loss was presented, as follows : 

DELPHINE. 

Ship Delphine, of Bangor, Maine ; of 705$f tons burden — 
William Green Nichols, master. E. W. Meteali (and others) 
owners. Sailed October 12, 18(54, from London for Akyab; was 
captured and destroyed Dec. 29, 1864, in latitude 39° 20' south, 
longitude 69° east, bv the Shenandoah. 

Total claims filed 193,100.00. 

* * (Then follows list of items. ) * * * 

(Revised List of Claims p. 284) 

( 6 ) See Note 2. 

( 7 ) Gross amount of claims for losses growing out of the 
destruction of vessels and their cargoes by the insurgent crui- 



States, for its own benefit, deprived me of remedy 
against her.( n ) 

sers— $20,261,950,60. 

Less double claims for the same losses (in- 
cluding about $5,700,000 by Insurance Com- 
panies), prospective earnings and gross 
freight, exceeding net freight, about - - J $12,461,950 60 

Leaving as unindemnified loss, occasioned by i 
all the rebel cruisers, at owners' estimates >■ 
of values, say - - - - ) 7,800,000 00 

Insurers paid for Avar losses about - - - - $ 5,750,000 00 
They received in war premiums not less than 10,000,000 00 
— (Short Hist. Long Negotiations, p. 32.) 

" The settlement of the less important matter of money in- 
demnity was such as ought to be satisfactory to the United 
States, for the amount awarded is sufficient to pay a fair indem- 
nity for all the destruction of property for which claims were 
presented to the Tribunal. The United States offered to accept 
as consideration for the national claims, a rule which would 
have precisely the same effect as the decision excluding them, 
given by the Tribunal. The value of the property captured or 
destroyed had been 'recovered in the name of the government,' 
and the government left ' free to decide as to the rights and 
claims of insurers.' " — (Same. p. 28.) 

"Whether the sum awarded be adequate, depends, in my 
opinion, on whether distribution be made among actual losers 
only and citizens of the United States." — Caleb Cashing in 
Treaty Wash. p. 167. 

( 7 ^) It has received in the value of the Shenandoah and Georgia 
themselves nearly or quite enough to pay for all the loss caused 
by them, which was excluded from the rules of international 
obligation, and for which the losers have received no indemnity. 

The Shenaudoah was in an English port, without a claimant; 
no change of ownership had been made since her wrongful act ; 
she was open to libel in the English courts for damage wrong- 
fully done. The Minister of the United States took possession 
of her for the benefit of the United States, thus depriving me of 
a remedy against her, which I had determined and prepared to 
seek. 

(She had been sold for 45,000 pounds sterling, about $220,000 
in gold.) 
— See Alabama Claims Correspondence, &c, vol. 3, pp. 447 and 319. 

( 8 ) Danger of war was averted; a benefit which cannot be 
estimated in money. 



It also received in other considerations, more im- 
portant than money, vastly more than full compensa- 
tion^ 8 ) 

Advantage for neutrals was gained, which is of great pros- 
pective value to the United States. 

"America's statesmen, in charge of her case, were neither 
narrow-minded nor short-sighted. They realized that this was 
the golden opportunity to gain advantage not only for our nation, 
but for all nations, advantage compared with which any amount 
of mere money indemnity would be insignificant. Our policy, 
so wisely inaugurated by Washington, had always been to avoid 
complications with foreign powers, and to be strictly neutral in 
foreign wars. Hence we had been the champion of the rights 
of neutrals, which England had habitually infringed upon or 
disregarded. As expressed by our counsel at Geneva, ' both the 
sentiments and the interests of the United States, their history 
and their future, have made and will make them the principal 
advocates and defenders of the rights of neutrals, before all the 
world.' * * * * The world needed, and it was 

especially the interest of the United States, to have not only the 
privileges but the obligations of neutrals well-defined and estab- 
lished. They therefore wisely insisted that the Tribunal should 
give its judgment on these claims. 

They placed the facts and the claims before the Tribunal, 
hoping that they would be regarded " as a reason why a gross 
sum should be awarded, which should be an ample and liberal 
compensation for our losses by captures and burnings, without 
going into petty details. 'f ***** 

They were aware, too, that the injuries which England 
had inflicted on the United States were such as money could 
not pay for, and though "regretted" by England in the Treaty, 
would never be forgotten by Americans. * * * * 

They knew that what Eichard Oobden had said during the debate 
in the English Parliament, in regard to the Georgia was true — 
that we ' have a sea coast on the Atlantic and another on the 
Pacific ; that however vigilant, loyal, and true to its principles 
the American government might be when England should be at 
Avar, if American nature be human nature, that out of their 
numerous and almost inaccessible creeks and corners there will 
be persons to send forth fleet steamers to prey upon her com- 
merce, that many Americans Avill think it an act of actual 
patriotism to do so.' * * * They therefore offered 
to accept a new rule. " That both governments adopt for the 

f Letter from E. R. Hoar to Mr. Fish. Papers, &c, Vol. 2, p. 598. 



The question what disposition should be made of 
the Geneva award was under consideration by your 
Committee. 

future, the principle that claims for remote or indirect losses 
should not be admitted as the result of failure to observe neutral 
obligations, — * as the consideration for, and as a final settle- 
ment of the three classes of the indirect claims put forth in the 
case of the United States.' * * * * 

The Tribunal proceeded according to the provisions of the 
Treaty. 

' First. To determine as to each vessel separately, whether 
Great Britain has by any act or omission failed to fulfill any of 
the duties set forth in the foregoing three rules, or recognized 
by the principles of international law not inconsistent with said 
rules, and certify such fact as to each of the said vessels,' — thus 
determining for the future the liability of neutrals in similar 
cases. * * * Great Britain was held derelict as re- 
gards the acts of only two vessels, with their tenders, and a part 
of the acts of a third, but $15,500,000 was awarded as the sum 
in gross to be paid by Great Britain to the United States for all 
the claims referred to the Tribunal. * * * 

The United States, (although going before the Tribunal as a 
belligerent with a case against a neutral,) expressly stated by its 
counsel to the Tribunal, that ' both the sentiments and the in- 
terests of the United States, their history and their future, have 
made, and will make them the principal advocates and defenders 
of the rights of neutrals before all the world. It is not for their 
interests to exaggerate the responsibilities of neutrals, but only 
in the sense of their action in this respect, throughout their 
whole national life-time, to restrain the field of arms, and enlarge 
that of peace. ' 

Hence, when the arbitrators decided as regards so many of the 
vessels, that England had not violated the three rules, or the 
laws of nations, thus defining the effect and value of those rules 
and laws for all future time, it was a decision in favor of, not 
against the United States. * * * 

It might, however, have been unfortunate for individual suf- 
ferers, if their rights, as regards either nation, had been deter- 
mined by these purely national considerations. * * 

The English agent and counsel earned the thanks of the 
United States, not of England, Avhen they urged the fact in regard 
to the Georgia, that 

' Information about the construction and outfit of the vessel 
had for a long time before her departure been in the possession 



10 

Under these facts, I, last year, thought it not un- 
reasonable to ask you to recommend legislation which 
would insure to me indemnity for my loss.( 9 ) 

In support of my prayer, I urged that the owners of 
Ship Delphine, all of whom I represent, had suffered 
by the wrongful acts of England, from which we had 

of Mr. Adams ; but no communication was made by him to Her 
Majesty's government on the subject, until six days after the ship 
had sailed.' 

When they urged that 

" The complaints of the United States might not have been 
necessary if Mr. Adams had communicated in good time such 
information as he possessed." * * * 

When they urged, in regard to the Shenandoah, that ' It will 
have been seen also that no representation had been made to her 
Majesty's government respecting her, by Mr. Adams' — for the 
decision of the Tribunal, (so valuable for neutrals, and so unfor- 
tunate for belligerents) as regards these vessels, seems to have 
resulted from the lack of proof that English officials had knowl- 
edge of their character before they sailed. * * * 

Minister Schenck said respecting the new rule in regard to 
indirect damages, which was to be accepted as consideration for 
the indirect claims : 

'I think the principle declared in this Article for future 
observance between the two nations is one which, if settled and 
maintained, must be of inestimable advantage to the United 
States. With our chances of being generally neutral, when 
Great Britain and the other European States are belligerent, the 
benefits of the rule are to be principally and oftenest ours. Our 
continental position, our extended sea-coast, our numerous ports, 
the enterprising character of our citizens, and the difficulty of 
restraining their spirit of adventure, surely make the rule that 
would thus be established more valuable and more favorable to 
the United States than to perhaps any other country.' 

With how much more force may this be said of the decis- 
ion which settles and maintains a construction of the Treaty 
rules, by which a neutral escapes liability for the acts of the 
Georgia and the Shenandoah before she reached Australia !" — 
(Short Hist. Long Negotiations, pp. 20 to 29.) 

No. IS. Mr. Fish to Mr. Schenck. 

"* * * In this correspondence I have gone as far 
as prudence would allow in intimating that we neither desired 



11 

the right to ask protection of our government — that 
our government had condoned the wrong, had depriv- 
ed us of all remedy against England, and in the con- 
doning had received abundant compensation for the 
injury done to us — that this nation had endorsed our 
claim( 10 ) — that we still held that endorsement [ n ]— 

or expected any pecuniary award, and that we should be con- 
tent with an award that a state is not liable in pecuniary 
damages for the indirect results of a failure to observe its neu- 
tral obligations. It is not the interest of a country situate as 
are the United States, with their large extent of sea-coast, a 
small navy, and smaller internal police, to have it established 
that a nation is liable in damages, &c. * * This gov- 
ernment expects to be in the future as it has been in the past, a 
neutral much more of the time than a belligerent. " * * 

Hamilton Fish. 
—(Papers, &c. Vol. 2, p. 476.) 

(Telegram No. 114, Mr. Fish to Gen. Schenck, and Mr. Davis.) 

* * * rp^g President directs me to say that he accepts 
the declaration of the Tribunal, as its judgment upon a question 
of public law, which he felt that the interests of both govern- 
ments required should be decided. * * * This is the 
attainment of an end, which this government had in view, in the 
putting forth of those claims. We had no desire for a pecuni- 
ary reward, but desired an expression by the tribunal as to the 
liability of a neutral for claims of that character. 

Fish. 
—(Papers, &c. Vol. 2, p. 578.) 

"There are other assertions of important neutral right, but 
these are among the most important. They seem all to be avail- 
able in a possible future to the United States. * * * 
The United States have had occasion to look practically on both 
sides of the question, and therefore, sometimes to assert neutral 
duties, while more generally asserting neutral rights and the 
policy of peace, to such extent and under such circumstances as 
to have rendered the United States the champion of neutral 
rights." * * Hamilton Fish. 

—(Papers, &c. Vol. 4, pp. 548-549.) 

( 9 ) Builder of ship Delphine, before H. R. Jud. Com. 

( u ) See notes 3 and 4. 



12 

that our government refused to give the Tribunal ju- 
risdiction of the question who should share in the 
distribution of its award [ ia ] — that the Tribunal refused 

* * "I have been singularly unfortunate in my cor- 
respondence if I have not given it to be clearly understood that 
a violation of neutrality by the Queen's proclamation, and kind- 
red proceedings of the British government, is regarded as a 
national wrong and injury to the United States; and that the 
lowest form of satisfaction for that national injury that the 
United States could accept would be found in an indemnity 
without reservation or compromise by the British government, 
to those citizens of the United States who had suffered indi- 
vidual injury and damages by the vessels of war unlawfully 
built, equipped, manned, fitted out or entertained, and protected 
in the British ports and harbors. ***** 

"William H. Seward." 
Charles Francis Adams. — (Cor,, &c, Vol. 3, p. 688.) 

" I therefore recommend * * that authority be given 
for the settlement of these claims by the United States, so that 
the Government shall have the ownership of the private claims, 
as well as the responsible control of all the demands against 
Great Britain." 

(Message of President Grant, Dec. 5, 1870.) 

( 1X ) The settlement with the respondent by the endorser, 
where he receives full value for the claim, cannot cancel, but 
must strengthen the obligation of that endorser to the claimant. 

( l2 ) (Mr. Fish to Mr. dishing, and same to Mr. Evarts and 
Mr. Waite.) 

Sir: The President having appointed you one of the counsel 
of the United States in the matter submitted to the Tribunal 
of Arbitration, to meet in Geneva, * * it becomes necessary 
to give you briefly the President's instructions on the subject of 
your duties. * * 

The President desires to have the subject discussed as one 
between the two governments, and he directs me to urge upon 
you strongly to secure, if possible, the award of a sum in gross. 
In the discussion of this question, and in the treatment of the 
entire case, you will be careful not to commit the government 
as to the disposition of what may be awarded. * * It is pos- 
sible that there may be duplicate claims for some of the property 
alleged to have been captured or destroyed, as in the cases of 
insurers and insured. The government wishes to hold itself 



13 

to take such jurisdiction [ 15 ] — that the Tribunal was 
purely international, and could have no jurisdiction 
over questions of obligation of either government to 
its subjects — that no question of obligation of govern 
ment to its citizens was submitted to, or considered by 
the Tribunal, hence its action could decide no such 
question, or impose on this government any trustee- 
ship or obligation other than to administer its award 
with impartial justice. 

Your Committee listened favorably to my prayer, 
and framed a bill which, had it been enacted would 
have secured justice. [ 14 ] 

free to decide as to the rights and claims of insurers, upon the 
termination of the case. If the value of the property captured 
or destroyed be recovered in the name of ths government, the dis- 
tribution of the amount recovered will he made by this govern- 
ment, without committal as to the mode of distribution. It is 
expected that all such committal be avoided in the argument of 
counsel. * * Hamilton Fish. 

— {Papers, &c, Vol. 2, p. £14-) 

In accordance with these instructions our counsel said to the 
Tribunal: 

'■' From these arrangements of the Treaty, it is apparent 
* * Second, That these claims are all preferred by the 
United States as a nation against Great Britain as a nation, and 
are to be so computed and paid, whether awarded as ' a sum 
in gross,' under the seventh article of the treaty, or awarded for 
assessment of amounts, under the tenth article." 

( 13 ) The tribunal acted without objection upon this state- 
ment (see note 12) and awarded a sum in gross, in satisfaction 
of all the claims — as far removed as possible from deciding 
whom the United States should indemnify from the award. 

( 14 ) It provided for the payment: "First, For all loss, de- 
struction or damage, by any Confederate cruiser for whose acts 
the Government of the United States have made demand upon 
the Government of Great Britain." — (H. R. bill.) 



14 

But certain parties who had suffered no injury by 
the fault of England, but had been largely benefited 
by the consequences of that fault,( 15 ) opposed the pas- 
sage of your bill, and demanded, on purely technical 
grounds, that they should be included, and sufferers 
like myself excluded in the distribution of the award. 

Their demand was supported by the influence and 
ability of the ablest lawyers whose services they could 
secure. 

And although the bill, as reported by you, passed 
the House of Representatives by a large majority, it 
failed of approval in the Senate. 

A law was enacted which practically t provided full 
indemnity for all actual loss caused to Insurance Com- 
panies by Rebel Cruisers, whether included or not in 
the rules of international obligation, determined at 
Geneva ( 16 ) but it provided no indemnity for me, and 
many others, who, like me had suffered direct loss 
through England's fault. 

Even this law was opposed by Attorneys of Insur- 
ance Companies, because it did not, besides indemnity^ 
provide for the payment to them of enormous sums in 
addition to the enormous profits, which the wrongful 



( 15 ) Insurers paid for war losses about $5,750,000. They 
received in war premiums at least $10,000,000. 

( 16 ) By the law, as enacted, every Insurance Company or In- 
surer is to be compensated for its or his loss, who can show 
" that during the late rebellion, the sum of its or his losses, in 
respect to its or his war risks, exceeded the sum of its or his 
premiums, or other gains upon or in respect to such war risks." 
—{Senate bill No. 7, Sec. 12.) 



15 

acts of England had enabled them to secure, ( I5 ) and 
this, notwithstanding the fact that as regards the fault 
of England, their claims "fall within that elementary 
rule of damages so familiar to the legal profession 
that only such damages are recoverable as are the 
direct, immediate, necessary result of the act. "( 17 ) 
For they need not have paid a single dollar of the loss 
even though England's wrongful acts had caused the 
destruction of every American ship afloat. Their 
having to pay was the result of their own act, by which 
they, in the hope and realization of great gain, volun- 
tarily assumed the risk. It was in no sense the nec- 
essary result of England's fault. That fault only gave 
them the opportunity, which they so eagerly embraced, 
to enlarge their profitable business. 

The payments authorized by this law appropriate 
less than half of the Geneva award ;( 18 ) the balance 
remaining " a fund from which Congress may here- 
after authorize the payment of other claims there - 
on."( 19 ) 

In view of these facts, I again, humbly, but earnest- 
ly, pray that your Committee recommend Congress 
to authorize the payment of my claim. 

I am aware that we, as citizens, have no legal rem- 
edy against our government, but does not this fact, 

( M ) Speech of Hon. Lyman Tremain (in regard to war 
premiums). — {Con. Rec, June 10, 1874, p- 5.) 

( 18 ) See note 7 with statement of claims. Many estimate 
the amount appropriated much less. 

( 19 ) Law as enacted, Sec. 15. 



16 

together with the fact that Congress makes the laws 
and makes the Courts to administer them, changing 
either at its will, remove the whole matter from the 
atmosphere of mere legal technicalities, to the higher 
one of moral obligation ? and for Congress, empha- 
size the question, what is right? What ought the 
law to be ? The question, what is the law ? is one 
for Courts. 

Yet, if Congress were bound by pre-existing law, 
no law exists excluding me. 

The International Tribunal made, could make no 
law for the distribution of its award. Governments 
only, no citizens, as such, had any part in or were 
represented in the Tribunal, or in that portion of the 
Treaty which created it.(' 20 ) Hence, no citizen was 
either included or excluded by its decision. 

( 20 ) " Whereas, differences have arisen between the Govern- 
ment of the United States and the Government of Her Britannic 
Majesty, and still exist, growing out of the acts committed by 
the several vessels, which have given rise to the claims gen- 
erically known as the "Alabama Claims;" now in order to 
remove and adjust all complaints and claims on the part of the 
United States, and to provide for the speedy settlement of such 
claims, * * * the High Contracting Parties 

agree that all the said claims, growing out of the acts commit- 
ted by the aforesaid vessels * * shall be referred to a 
Tribunal of Arbitration." * * 

—{Treaty Wash. Art. 1.) 

Thus the claims of the government only were referred to the 
tribunal. Those of citizens were referred to a Mixed Commis- 
sion by Art. 12, as follows: "The High Contracting Parties 
agree that all claims on the part of corporations, companies, or 
private individuals, citizens of the United States, upon the gov- 
ernment of Her Britannic Majesty * * * and all 
claims with the like exception, on the part of corporations, com- 



17 

This nation is morally forbidden to plead as a bar 
to my claim that it was nominally not included in the 
Tribunal's rules of international obligation, for the 
exclusion depended on the fact that this government 
accepted an apology, and three new rules of value to 
itself, as "the means of" so "reducing the measure of 
the complaint and demand for indemnity before the 
Tribunal" (" 20 ^), as to ensure such exclusion — the ex- 
clusion itself being of very great value to this nation. 

When this government " abandoned the claims for 
compensation, founded on the Queen's proclamation, 
( 21 ) it, for its own interests ( 21 *) withdrew from the 

panies or private individuals, subjects of Her Britannic Majesty, 
upon the government of the United States * * * 
shall be referred to three commissioners." 

See also instructions to counsel and their statement to Tri- 
bunal. ISote 1"^. 

( 20 |) "From these arrangements of the Treaty it is apparent, 
first, That the High Contracting Parties have found (in the 
public act of the government of Great Britain, expressing the 
regret of that government for certain occurrences in the past, 
and in the joint public act of the two governments, by which 
they agree to observe, "as between themselves in future," the 
rules established as the law of this Arbitration, " and to bring 
them to the knowledge of other maritime powers, and to invite 
them to accede to them ") — the means of reducing the measure 
of the complaint, and demand for indemnity, insisted upon by 
the United States, and contested by Great Britain, before this 
Tribunal, to all the claims of the United States, •■growing out 
of acts committed by the described vessels" — {Argument of Coun- 
sel U. 8., Papers, &c, Vol. -J, p. 16.) 

( 2l ) "It cannot therefore be doubted that in the beginning of 
the year 1871 it was well understood by both governments that 
the United States maintained that Her Majesty's government 
ought, under the law of nations, to make good to them the 
losses which they had suffered by reason of the acts ot all the 
cruisers typically represented by the Alabama. It is also equally 
clear that the claims for compensation founded upon the Queen's 



18 

case, and refused to place before the Tribunal as a 
basis for its claims that great initial wrong of Great 
Britain, which was "the cause, and the only cause," 

proclamation, were abandoned by President Grant? — {Argument 
of U. S. at Geneva, Papers, dec, Vol. 3, p. 196.) 

" While in the Treaty the United States abandoned their 
claims for the premature recognition of belligerent rights." — 
{Same, p. 203.) 

" According to Sir Stafford Northcote, also, the claims aban- 
doned by the United States were those 'growing out of the pre- 
mature recognition of belligerency.' * * * He said 
that the ' large class of claims upon which the Americans had 
heretofore insisted ' were to be 'shut out,' not because they were 
expressly excluded by the terms of the Treaty, but because, ' by 
confining the reference solely to losses growing out of the acts 
of particular vessels,' the parties had, in his judgment, made it 
impossible for the United States to connect the objectionable 
claims with what the treaty pointed out as the only cause of the 
injuries which the Arbitrators could regard." — {Same, 20J/..) 

" They (English statesmen) felt that they had protected Great 
Britain by the condition which they had imposed upon the 
United States, obliging them to trace all their complaints of 
injury to the acts of the cruisers as the originating cause of the 
damage." — {Same, p. 205.) 

" The Johnson-Clarendon Treaty did not exclude from consid- 
eration, at least by words of express exclusion, claims of the 
United States on account of the premature recognition by Great 
Britain of the insurgents. * * * When the Treaty 
of Washington came under discussion in Parliament, Lord 
Granville said, and said truly, that in this respect the Treaty of 
Washington had advantages over the Johnson-Clarendon Treaty. 
The former did not, like the latter, comprehend the belligerency 
question as a ground of claim. * * * 

It was understood, and it is understood that the former class 
of injuries (on account of the Queen's proclamation) are not 
comprised in the Treaty, but are in effect excluded by the ex- 
press language of the Treaty, which confines reclamation to acts 
of the Confederate cruisers." — {Same, p. 209.) 

( 2lH ) "Secretary Seward had insisted that England owed 
apology and indemnity for her hasty recognition of the rebels as 
belligerents, and relied on this to support the claims of private- 
citizens. He had declined all plans of arbitration, which should 
not consider this recognition as a basis of these claims. Eng- 
land, after persistent refusal, had at last consented that it be so 



19 

in which " this evil had its origin," "from which all the 
grievances seem deducible," without which no rebel 
vessel could have existed, outside of Confederate 

considered. But President Grant, not wishing to compromise 
the proud position of influence for good to all nations which 
this nation was entitled to hold in the future, would consent to 
no restriction upon our right to decide for ourselves when and 
how to give moral support to a people struggling for indepen- 
dent nationality. Hence he refused to base any claim in the 
treaty, or in our case against England, on the fact of her having 
exercised her right with ill-judged and unfriendly haste. He 
thus abandoned a most powerful argument in support of one 
part of the claims of citizens of the United States against Eng- 
land. It would have been wrong for him to have done other- 
wise. It was condoning England's wrong for a consideration 
valuable to the nation, thus transferring England's obligation, 
so far as concerned citizens of the United States, to the govern- 
ment of the United States. But the nation could afford, and 
had the right to act upon the President's recommendation to in- 
demnify these citizens for England's wrong. It could not afford, 
had not the right to lessen its own power for good among the 
nations." — (Short Hist. Long JVego., pp. 16, 17.) 

" Long before they pretended to have a flag, or to put either an 
armed ship, or even a merchant vessel upon the sea, Her Majes- 
ty's government, acting precipitately, as we have always com- 
plained, proclaimed the insurgents a belligerent power. * * 
This government has not denied that it was within the sover- 
eign authority of Great Britain, to assume this attitude, but on 
the other hand, it insisted in the beginning, and has continually 
insisted that the assumption of that attitude unnecessarily and 
prematurely would be an injurious proceeding, for which Great 
Britain would immediately come under a full responsibility to 
justify it, or to render redress and indemnity. The United 
States remain of the opinion that the proclamation referred to 
has not been justified." — {Cor. &c, Vol. p. 634-) 

* * ' ; We are now distinctly informed by Lord 

Stanley's letter that the limited reference of the so-called Ala- 
bama Claims, which Lord Stanley proposes, is tendered upon the 
condition that the United States shall waive before the arbi- 
trator the position they have constantly maintained from the 
beginning, namely : that the Queen's proclamation of 1861, 
which accorded belligerent rights to insurgents against the 
authority of the United States, was not justified on any grounds, 
either of necessity or moral right. * The condition 



20 

waters, or Anglo-Rebel vessel destroyed a single 
ship ( 22 ) 

It was the right and the duty of this government 

being inadmissible, the proposed limited reference is therefore 
declined." * * William H. Seward. 

Charles Francis Adams, Esq. — (Same p. 686.) 

* * * " As the case now stands, the injuries by 
which the United States are aggrieved are not chiefly the actual 
losses sustained in the several depredations, but the first un- 
friendly or wrongful proceeding, of which they are but conse- 
quences." — (Same, p. 674) 

The Clarendon-Johnson Convention was rejected for national 
reasons, and to the injury of individual sufferers (if they were 
not to be indemnified by our government), for by that Conven- 
tion the unwarrantable recognition was to be considered as a 
basis of claims. Our Minister, Eeverdy Johnson, says of that 
Convention : " This question (the alleged unauthorized recog- 
nition of belligerent rights), as well as the question whether this 
[the English] government had observed their neutral obligations 
in suffering the Alabama and other vessels to be built and escape 
from their ports, will be both before the Commission and the 
umpire. That their decision will be in favor of the United States 
I do not doubt. The reasons for this conviction I will briefly 
state: First, The recognition of belligerent rights. The his- 
tory of the world furnishes no instance of so speedy a recogni- 
tion in the case of revolutionary efforts to subvert an existing 
government. At the time it was made, the insurgents had no 
port within which to build a ship of war, large or small, or the 
power to get her out if she was built. Nor had they any port to 
which they could carry any ship that they might capture as 
prize of war for condemnation in a court of admiralty. * * 

* Upon this ground, then, independent of the question 
of proper diligence, the obligation of Great Britain to meet the 
losses seems to me to be most apparent. * * * I am 
satisfied that if the convention goes into operation, every dollar 
due on what are known as the Alabama Claims, will be recov- 
ered." — (Joh?isoti to Seward, Mess, and Doc. Dept. State, Part 1st, 
1868 and 1869, p. 411.) 

( 22 ) The Queen's proclamation granting belligerent rights 
was issued before Mr. Adams, our Minister, had been received 
by the British government. At his first interview he said: "I 
must be permitted to express the great regret I had felt on 
learning the decision to issue the Queen's proclamation, which 



21 

to do as it did, for it was a great nation acting for 
itself, in the interest of all its people. 

Had it been, as some claim it was, acting as col- 

at once raised the insurgents to the level of a belligerent State. 
* * * It pronounced the insurgents to be a bel- 
ligerent State before they had eve. shown their capacity to 
maintain any kind of warfare whatever. * * It consid- 
ered them a maritime power before they had ever exhibited a 
single privateer on the ocean." — {Cor. concerning Claims vs. G. 
B., Vol 1, pp. 183-4.) 

Soon after it was known in Washington, our Government 
wrote to Mr. Adams : ''The whole American people, so far as 
they are American, are shocked, offended and disgusted with 
declarations of neutrality by the British Government." — (Same, 
p. 202.) 

Again, Jan. 23 and Feb. 5, 1862: " We are embarassed by the 
attitude of the British Government in regard to the entertain- 
ment it gives in its ports to pirates engaged * * * in destroying 
our national commerce. * * * It is easy to see that this is the 
effect of a premature recognition of the insurrection as entitled 
to belligerent rights." — (p. 223.) And Feb. 27: "For our own 
part, we must remain in the belief that the cause and the only 
cause of all the misapprehensions and embarassments which 
have occurred, affecting the two countries, was an unnecessary 
and premature concession of belligerent rights to the insur- 
gents."— (p. 220.) 

Mr. Adams, in an official interview with the British Govern- 
ment, (April 15, 1862,) said: "I beg, furthermore, to advance 
an opinion that there is not an example in all the history of the 
United States or of Great Britain, nay, I might say of any civi- 
lized nation of the world, of so precipitate a recognition of 
belligerent rights to insurgents as this one of which we are 
treating."— (p. 24.0.) 

Our Government said, Oct. 5, 1863: "The successive prepara- 
tions of hostile naval expeditions in Great Britain are regarded 
here as fruits of that injudicious proclamation." — (p. 270.) And 
Jan. 6, 18K4: "On our part, we trace all the evils to an unneces- 
sary and, as we think, an anomalous recognition by Her Majes- 
ty's Government. * * " — (p. 273.) 

In the notice of our Government to that of Great Britain, 
that she would be held responsible for the depredations of the 
Shenandoah before Australia, Mr. Adams said: "I am reluc- 
tantly compelled to acknowledge the belief that, practically, 
this evil had its origin in the first step taken, * * of acknowl- 



22 

lecting agent for a few individuals, such conduct 
would have been so dishonest and dishonorable as to 
exclude any attorney from practicing at any bar. ( 38 ) 
If this abandonment of the sure foundation for a 
part of the claims, and limiting the evidence to the 
"acts committed by the several vessels" practically in- 
sured the decision, ( 24 ) which the best interests of this 

edging persons as a belligerent power on the ocean before they 
had a single vessel of their own to show floating upon it." — 
(Adams to Russell, p. 290.) 

In a formal note to the British Government, dated May 20, 
1865, our Government maintained — 

First. That the act of recognition * * was precipitate and 
unprecedented. 

Second. That it had the effect of creating these parties bellig- 
erents after the recognition, instead of merely acknowledging 
an existing fact. * * 

Fourth. That during the whole course of the struggle in 
America, of nearly four years in duration, there has been no 
appearance of the insurgents as a belligerent on the ocean, 
excepting in the shape of British vessels, constructed, equipped, 
supplied, manned and armed in British ports. * * 

Seventh. That the failure to check this flagrant abuse of neu- 
trality, * * with the aid of the recognition of their bellig- 
erent character, has resulted in the burning and destroying on 
the ocean a large number of merchant vessels, and a very large 
amount of property belonging to the people of the United 
States. * * 

Ninth. That the injuries thus received are of so grave a nature 
as in reason and justice to constitute a valid claim for reparation 
and indemnification. * * 

The nation that recognized a power as a belligerent before it 
had built a vessel, and became itself the sole source of all the 
belligerent character it has ever possessed on the ocean, must be 
regarded as responsible for all the damage that has ensued from 
that cause." — ( p. -J04-) 

( 33 ) ''That which would make a private man infamous can 
not be consistent with the justice and the honor of a great 
nation." — (Senator Thurman, Con. Ree., June 24- 1874, p. 27.) 

( 2i ) "They (the English statesmen) felt that they had pro- 
tected Great Britain by the condition which they had imposed 



23 

nation required, ( 25 ) did it not transfer to this nation 
the moral obligation to indemnify those who suffered 
by the wrong? ( 1(i ) 

Yet our government waived none of its claims. 
Our counsel said to the Tribunal, "the payment of a 
gross sum was to be made, and accepted as a 'satis- 
faction of all the claims • such a payment, and such 
an application of the payment are utterly inconsistent 
with the idea of a waiver of any of the claims." ( M ) 

Yes, our government demanded and received a 
gross sum as "satisfaction of all the claims'''' — a sum 
which is, and doubtless was intended by the Arbi- 
trators to be sufficient to enable our government to 
indemnify from this fund all loyal American citizens 
who suffered actual loss on the sea through England's 

upon the United States, obliging them to trace all their com- 
plaints of injury to the acts of the cruisers, as the originating 
cause of the damage." — {Amer. Argument at Geneva, Papers, etc., 
Vol 3, p. 205.) 

According to Sir Stafford Northcote, "by confining the refer- 
ence solely to losses growing out of the acts of particular vessels" 
the parties had, in his judgment, made it impossible for the 
United States .to connect the objectionable claims with what the 
treaty pointed out as the only cause of the injuries which the 
Arbitrators could regard. — {Same, 204>) 

( 25 ) See Note 6. 

( 26 ) "Having for its own interest withdrawn from the Arbi- 
trators the 'cause and only cause of the evil,' thus leaving the 
Tribunal without evidence of that liability of England which 
the United States had over and over again, in every diplomatic 
form, insisted upon, is not the United States estopped from 
denying reparation to its citizens, based upon the finding of a 
Tribunal to which, for its own purposes, it would not submit the 
evidence? Indeed, by so doing, did not our Government assume 
this class of losses of its citizens ?" — {Report H. R. J. Com., p. 7.) 

( 27 ) Papers, Vol. 3, p. 109. 



24 

fault. In fact the London Times, in a leading article, 
stated "that there were good grounds for supposing 
that the indirect claims had in effect been paid, 
although they were nominally excluded." ( 28 ) 

"What is due to Great Britain in regard to this 
matter," [ 29 J has been asked by those who claim that 
we are bound by the award to exclude those who lost 
directly by the fault of England, in order to add from 
the sum awarded as indemnity for that fault, millions 
of dollars to the millions of profit, already secured 
by insurers in consequence of that fault. 

A long article from the London Economist, in 
favor of insurers, in some way found a place in the 
Congressional Record. [ :{0 ] 

The question, and this article are both answered, 
and the view I take fully sustained by the Crown 
lawyers of England, and by the official action of that 
government, which certainly are free from the suspi- 
cion of an interested origin on this side of the At- 
lantic 

British property was in, and British underwriters 
had insured the cargoes of ships which were de- 
stroyed by the Alabama. They, claiming that by the 
Geneva Award, American citizens had been indemni- 
fied for similar loss, asked indemnity of their govern- 
ment.^ 11 ] 

( 28 ) London Times, May 24, 1873. 

( 29 ) Minority Report H. R. J. Com., p. 23. 

( 30 ) Congressional Record, June 23, 1874, p. 31. 

( 31 ) London Times, May 24, 1873. 



25 

Under the advice of the law officers the British 
government rejected their claim. [ S2 ] 

During- debate in the British Parliament Mr. An- 
derson asked: " If we were obliged to pay for dam- 
age sustained by the Americans, by reason of the 
conduct of the Alabama, why were we not equally 
bound to pay for the damage sustained by our own 
subjects by reason of the acts of that vessel ?" [ 38 ] 

Mr. Gladstone, then Prime Minister, said: "It 
appears to be implied that the government submitted 
the claims of certain persons not subjects of Her 
Majesty, to arbitration. 

This is altogether a mistake. No claims of indi- 
viduals have bee?i submitted to arbitration in relation 
to the Alabama. 

What zvas submitted to arbitration was entirely a 
question between the two governments." (^*) 

Our government refused in advance to be controlled 
in its relation to its citizens by the decisions of the 
Tribunal. ( 85 ) 

It promised to distribute the amount recovered, ( 80 ) 

( J2 ) Same. 

( 33 ) Same. 

( 34 ) Same. 

( 35 ) "In the discussion of this question, and in the treatment 
of the entire case, you will be careful not to commit the Govern- 
ment as to the disposition of what may he awarded." — {Instructions 
to Counsel at Geneva.) 

( 3fl ) "If the value of the property captured or destroyed be 
recovered in the name of the Government, the distribution of the 
amount awarded will be made by this Government." — (Same.) 



26 

but refused to be committed as to the mode of distri- 
bution^ 36 ) especially as regards insurers, [ 37 ] and in- 
structed its counsel at Geneva to avoid all such com- 
mittal, which they did. Yet the opinions of the Arbi- 
trators are entitled to the utmost consideration, and 
should be followed wherever applicable. None of 
their utterances seem more reasonable, or of broader 
application than " Whereas, in order to arrive at an 
equitable compensation for the damages which have 
been sustained, it is necessary to set aside all double 
claims for the same losses. [ 38 ] 

This, as 'well as their opinion regarding "prospec- 
tive earnings, "[ 39 ] "gross freights, so far as they ex- 
ceed net freights, "[ 40 ] and interest were deemed ap- 
plicable, and have been adopted in the law for the 
partial distribution of the fund which was enacted 
last session. [ 41 ] 

The double claims for the same losses, when in- 
surers claimed pay from the assured and also from 
the government, were set aside. Insurers, however, 
were not required to refund any part of the double 
pay for their losses, which they had already received 
from the assured. And they were allowed to take 
into their account all their losses occasioned by all 
the rebel cruisers, without regard to the decisions of 
the Tribunal, and whether or not occasioned by a 

( 37 ) "The Government wishes to hold itself free to decide as 
to the rights and claims of insurers upon the termination of the 
case." — (Same.) 

( 3 &Vo 9 ) Decision and Award. 



27 

cruiser for whose acts the government of the United 
States had made demand upon the Government of 
Great Britain. ( i2 ) 

With the facts, and this precedent before you, can 
any member of your honorable Committee fail to be- 
lieve that my prayer is fully within the bounds of 
justice and reason, and endorsed by the demands of 
national honor ? Granting it, will involve the appro- 
priation of but a very small part of what will remain 
of the fund, for our loss with interest, is but little 
more than $100,000.00. 

It would require less than $1,200,000 to indemnify 
for all the losses occasioned by all those cruisers for 
the acts of which our government demanded indem- 
nity of Great Britain, and which are not already pro- 
vided for in the law as enacted. 

The events of the war have enriched other claim- 
ants, and enabled them to employ what they esteemed 
the ablest legal talent in the world, to argue in favor 
of their claims. These same events compel me to de- 
pend upon my own simple recital of the simple facts, 
trusting that you will make the arguments in favor of 
the right. 

To obviate all question as to facts I herewith sub- 
mit references to authorities with quotations. They 
substantiate every statement I have made. 



BUILDER OF SHIP DELPHINB, 

(e. w. metcalf,) 

BEFORE THE H, R. JUDICIARY COMMITTEE. 
DEC, 1873. 
To the Committee on Judiciary, House of Representatives. 

Gentlemen: I built ship Delphine, in Bangor, Maine, and 
sold part of her to persons whose interest I represent. 

She was burned by the Shenandoah, just before that English 
corsair reached Australia. 

I had no insurance. Her captain, who owned one-eighth of 
the ship, without insurance, was left with his wife and child, 
destitute in Australia. 

We, the owners, and captain, ask of this nation indemnity for 
our loss. 

We respectfully ask this Honorable Committee to recommend 
legislation which will insure such indemnity. 

We are confident — glad to be confident — that if our prayer is 
one which ought not to be granted, the committee in its wisdom 
and justice, will see its duty, and refuse to grant it. 

For thus we are sure that if right, justice, and national honor 
ask for what we ask, their prayer will be granted. 

I know nothing whatever of law, but may not Congress, which 
makes the laws, and makes the courts to administer them — 
besides is a court of equity to right those wrongs which the law 
by reason of its generality cannot reach — may not Congress 
examine questions in the light of moral obligation and just 
expediency ? Does anything deprive Congress of the right to do 
right 9 

If not, the question before you is — What is right? 

If we have suffered wrong from which our government was 
under obligation to use due diligence to protect us, and our 
Government, for considerations of value to itself, has condoned 
that wrong, and deprived us of remedy against the wrong-doer, 
is it not right that we should be indemnified by our Govern- 
ment? 

If the nation has endorsed our claim, and we still hold that 
endorsement, is it not right that our claim should be held good 
against the nation ? 

If our Government has received money exclusively as indem- 
nity for wrongs done to itself, in the persons of its citizens, ought 
it not to pay those citizens who suffered by the wrong ? 



29 

Would it be right to pay any part of the money to those who 
were not injured but benefited, by the acts of the wrong-doer, to 
the exclusion of those who suffered loss by th ose acts ? 

If our Government refused to give, and the Tribunal at Geneva 
refused to take jurisdiction of the question, what claimants should 
share in the sum awarded ; would it be right to make the decis- 
ion of any international question by that Tribunal, decisive as to 
who should share in the distribution ? 

Has a purely international tribunal any jurisdiction over 
questions of the obligations of either Government to its own 
citizens ? 

If not, have the decisions of the Tribunal at Geneva imposed 
on this Government any trusteeship for the benefit of any spe- 
cific claimants or classes of claimants? Any obligation but to 
administer the amount awarded with impartial justice f 

If the members of this committee are not already so con- 
vinced, I think a moment's thought will convince them that 
we have suffered, by the wrongful acts of England, from which 
we had the right to ask protection of our Government. 

That our Government has condoned the wrong — has deprived 
us of all remedy against England, and in condoning has received 
abundant consideration for the injury done to us; that the 
nation has endorsed our claim ; that as against this nation we 
still hold that endorsement; that our Government, by virtue of 
the award at Geneva, has received money enough to pay all 
claims as meritorious as ours; that insurers were not injured 
but benefited by England's wrongful acts ; that it would be wrong 
to pay any part of the sum awarded to insurers, to the exclusion 
of citizens who suffered loss ; that our government refused 
to give the tribunal jurisdiction of the question, who should 
share in the distribution of the award ; that the tribunal refused 
to take such jurisdiction ; that the tribunal was purely interna- 
tional; that it had no jurisdiction over questions of obligation 
of either Government to its subjects, hence imposed no trustee- 
ship on this government but the obligation to do impartial justice 
with its award. 

If these are facts, do not right, justice, and national honor unite 
in asking that our prayer be granted ? 

A few words will explain the reasons for believing that they are 
facts. 

We have suffered by England's acts, which were wrong. 

The producing act, from which came all the losses which loyal 
Americans suffered on the sea, was the first act of England by 
which she created the possibility and the fact of belligerence on 
the sea. Without it no Confederate vessel could have existed 
outside the Confederate waters. 



30 

Without it no English vessel in Confederate guise could have 
destroyed a single ship. It changed the conflict on the land from 
an insurrection to a war. 

The moral character of an act always, the legal often, depends 
upon the motive and intention of the actor. England wished and 
intended these results. Her act was wrong. 

Secretary Seward relied upon and persistently urged this first 
act as good foundation for the claim that England should pay for 
all the losses caused by all the rebel cruisers, and England had at 
last consented, in the Clarendon-Johnson Convention, that this 
act, as well as the acts resulting from it, should be considered in 
the question of her liability. Our Government, for reasons doubt- 
less wise and good, condoned this wrong, abandoned it as basis 
for its claims for indemnity. 

The considerations bearing upon our foreign relations in the 
future were such that the United States could much better afford 
to pay the comparatively small amount of claims that were 
thus virtually abandoned, than to have the settlement other than 
it was. 

The settlement, in express terms, deprived us of all remedy 
against England. 

It was England's ship, sailing from her port, manned by her 
men, the successor to the Alabama, that burned our ship. (See 
Alabama Claims Correspondence, vol. 3, pages 319, 320, 330, &c.) 
From this wrong we had the right to ask our Government's pro- 
tection. The right to govern involves the obligation to protect. 
But in our nation there is a broad distinction between this obli- 
gation on the land and on the sea. 

On the land a subject looks for protection and indemnity for 
wrong to the authority of the town, county, or State in which 
he lives, and may seldom look beyond. He forfeits his right to 
protection if he places himself within the danger to which the 
authority subjects its enemies. 

We, on the sea, have no boundaries to limit our dangers ; can 
look only to the nation for protection. 

This distinction relieves the present question of indemnity 
from some embarrassments which have been supposed to sur- 
round it. 

The nation endorsed our claim. 

Before it was known that she had destroyed a ship, Mr. Adams 
was instructed to notify Lord Kussell "that this Government 
consider that Her Majesty's Government may be justly held re- 
sponsible for any losses accruing to citizens of the United States 
through the depredations of the Sea King." 

(See Alabama Claims, &c, vol. 3, p. 330.) 

As soon as her first depredations were known, Mr. Seward 



31 

wrote to Mr. Adams : " I have to request you to inform Her 
Majesty's Government that the United States will claim redress 
for the injuries inflicted on their citizens by the Sea King or 
Shenandoah." (Same, page 335.) 

And he did notify Lord Russell that " my Government cannot 
avoid entailing upon the Government of Great Britain the re- 
sponsibility for this damage." (Same, page 345.) 

Note that all this relates to the Shenandoah before she reached 
Australia. 

We still hold that endorsement, for the settlement with the 
respondent by the endorser, where he receives full value for the 
claim, cannot cancel, but must strengthen, the obligation of that 
endorser to the claimant. 

Our Government has received, in political considerations, more 
important than money, many times the value of all the unindem- 
nified loss caused by all the cruisers not included in the rules of 
international obligation established by the Geneva tribunal. 

It has received in the value of the Shenandoah and Georgia 
themselves nearly or quite enough to pay for all the loss caused 
by them, which was excluded from the rules of international 
obligation, and for which the losers have received no indemnity. 

The Shenandoah was in an English port, without a claimant ; 
no change of ownership had been made since her wrongful act ; 
she was open to libel in the English courts for damage wrong- 
fully done. The Minister of the United States took possession 
of her for the benefit of the United States, thus depriving me of 
a remedy against her, which I had determined and. prepared to 
seek. 

(She had been sold for 45,000 pounds sterling, about $220,000 
in gold.) 

(Alabama Claims Correspondence, &c, vol. 3, p. 447 and 319.) 

And our Government has received in money more than enough 
to indemnify all claims as meritorious as our own. 

Your honorable chairman, last year, in his report from this 
committee, after proving that " the amount awarded at Geneva 
is the money of the United States, to be disposed of at its pleas- 
ure, subject to no trust," said : " Your committee can have no 
doubt that the persons who ought first to be considered in this 
distribution are those who suffered losses while carrying on the 
commerce of the country, and have received no indemnity what- 
ever therefor." We are clearly of that class of persons. 

A careful examination of the list of claims shows that the whole 
amount, at owners' estimates of value, of actual unindemnified 
loss caused by all the cruisers is but about $7,800,000. With in- 
terest at 6 per cent, for ten years, it would be but $12,480,000. 
The proceeds of the Geneva award, at market value, are more 
than $17,000,000. 



32 

Insurers were not injured, but benefited by England's wrong. 

Without England's first wrong act there would have been no 
marine warfare, hence no marine war risks or losses; there 
would have been no war premiums either. 

The losses paid by insurers were about five and three quarter 
millions ; the war premiums paid to them from eight to twelve 
millions. 

Does that which causes one to receive ten million dollars and 
return but six injure him financially ? 

Insurance companies live by the fears of danger. If there 
were no danger there would be no fears, and they could not 
live. 

If no ship had ever been lost at sea, would any Marine In- 
surance Company have declared a dividend ? 

Would life insurance be profitable if no one ever died ? 

The award was expressly as " indemnity" for England's wrong. 
Would it be reason to indemnify a man, in money, for that 
which made him rich? 

Would it not be morally wrong, yes, morally absurd, to do so 
to the exclusion of one who lost by the wrong ? 

It was right for England to pay this Government in money, 
for all the property lost to the nation by her fault, (I say Gov- 
ernment, nation, for in its foreign relations each government is 
a unit, a body politic, every citizen is a member of that body, 
belonging to that government, as my thumbs are a part of and 
belong to me.) 

Such payment being made it would be wrong for the nation 
not to pay those of its citizens who lost by England's fault. 

If a man should maliciously bruise my thumb, and I should 
demand indemnity, it would be for myself. It would be a fool- 
ish wrong to bind up the well thumb and neglect the bruised one. 

If insurers had lost, instead of making millions, then they 
would have suffered no wrong from England — neither would 
they have any claim for indemnity upon the United States. 

England's wrong to the nation was no wrong to them. It 
created a large field for speculation, in their way, which they 
could enter or refuse to enter, as they chose. Neither England 
nor the United States compelled or asked them to go in. They 
went in at their own option, and on their own terms ; it was 
their voluntary act, from the consequences of which they have 
no right to ask protection of their Government. Idiots and 
insane persons have right to protection from their own acts. 

Our Government refused to give jurisdiction of the question 
who should share in the distribution of its award, when it said, 
by counsel to the Tribunal, in accordance with definite instruc- 
tions to that counsel, " these claims are all preferred by the 
United States as a nation against Great Britain as a nation, and 



33 

are to be so computed and paid, whether awarded as a sum in 
gross under the seventh article of the treaty, or awarded for 
assessment of amount under the tenth article." 

The tribunal refused to take such jurisdiction when it received 
this statement without objection, and in making its award chose 
the way farthest removed from deciding any such question. 

That the tribunal was purely international and had no juris- 
diction over questions of the obligation of either Government 
to its citizens, is apparent from the fact that Governments only, 
no citizens as such, had any part or were represented in that 
portion of the treaty which created the Tribunal, or in or before 
the Tribunal itself. 

No question of obligation of government to citizens was sub- 
mitted to or considered by the Tribunal, hence its action could 
decide no such question, or impose upon this Government any 
trusteeship or obligation in favor of any citizen or class of citi- 
zens, other than to administer its award with impartial justice. 

I am aware that all the arguments which can be urged in 
favor of our claim have equal force in favor of paying claims for 
other losses caused under similar circumstances by the Shenan- 
doah — nearly all for destruction by the Georgia — most of them 
in favor of those caused by any rebel cruiser. 

But the whole amount of unindemnified loss, not included in 
the rules of international obligation established by the Geneva 
Tribunal, is comparatively small, not exceeding, exclusive of in- 
terest, $220,000 by the Shenandoah, $180,000 by the Georgia, 
and $800,000 by all other rebel cruisers. 

The question whether all the money received as indemnity 
should be paid out, is one more of policy than right. A thou- 
sand eager evil eyes are watching for any opening to the treasury 
to insert a lever and pry open its door. 

Whether they would be baffled more by leaving the amount 
partly inside and partly outside of that door, or by having the 
amount received as indemnity paid out as indemnity, and the 
account closed, may be a question worth considering. 

It was the shipping interests broadly, at the time of the war, 
which suffered most by England's fault. 

Perhaps no more equitable bill of relief to those interests of 
that time could now be enacted than one which would distribute 
the remainder among those who paid war premiums ; but as 
their loss was caused by the fear rather than by the fact of de- 
struction, I think no word of mine need be added to support 
the opinion of the Judiciary Committee so ably expressed by 
your honorable chairman "that the persons who ought first to 
be considered" is that class of claimants to which we belong. 

In support of every statement I have made, 1 submit the 

6 



34 

authorities pointed to in the foot notes of a little statement of 
facts, which, with your permission, I will lay before you. 

I am very grateful for the kind attention which you have 
given to my weak presentation of what we believe to be our 
very strong case. E. W. Metcalf, 

Builder of Ship Delphine. 



GENEVA AWARD. 



FIVE MINUTES 

In Reply to Argument for Insurance Companies, before H. R. Judiciary 

Committee. 



BY E. W. METCALF. 



January, 1874. 

Hon. Mr. Evarts quoted from the President's message, as 
follows : 

" I therefore recommend to Congress to authorize the appoint- 
ment of a Commission, to take proof of the, amount and the 
ownership of these several claims, * * and that authority be 
given for the settlement of these claims by the United States, so 
that the Government shall have the ownership of the private 
claims, as well as the responsible control of all the demands 
against Great Britain." 1 

Then, speaking in behalf of insurance companies, Mr. Evarts 
claimed that the President thus acknowledged an obligation of 
the Government to its citizens, the nature or measure of which 
subsequent negotiations and treaties have not changed, except 
that it is strengthened by the fact that indemnity in money has 
been received by the Government for England's fault. 

This suggests the inquiry — Who would have received indem- 
nity in the settlement, had the course so recommended by the 
President been adopted ? 

FIKST. 

No distinction could or would have been made between losses 
caused by the Georgia and the Alabama, or between the Shenan- 
doah before and after Australia, for no distinction existed in 
their history, in the wrongfulness of their acts, or in the losses 
which they occasioned. The distinctions afterward made by the 
Tribunal related to questions of international obligation, and 
are of vast prospective importance and value to this nation, but 
did not touch the question of obligation to our own citizens. 2 

1. President's Message, Dec. 5, 1870. 

2. Correspondence, etc., Claims vs. Great Britain, Vol. 5, pp. 577, 586 
to 591. 



36 



SECOND. 



Losses occasioned by all Confederate cruisers outside of Con- 
federate waters would have been paid, for the United States had 
jnstly demanded of Great Britain full indemnity for the acts of 
all these cruisers, basing this demand upon that act of Great 
Britain which was, and which our Government had declared to 
be (I quote its words) "precipitate," 3 "unprecedented," 3 "unjus- 
tifiable," "the cause, and the only cause," 4 in which "this evil 
had its origin," 5 "from which all the grievances seem deduci- 
ble," 8 which "actually created," 7 gave "birth" 7 to their bellig- 
erent power, "by acknowledging persons as a belligerent power 
on the ocean before they had a single vessel floating upon it." 7 

And even after the nation had, for considerations of national 
importance only, " abandoned the claims for compensation 
founded upon the Queen's proclamation," 8 and basing its claims 
only on the small resultant remainder of the wrong, the United 
States still insisted that the "obligation to make full compensa- 
tion for the acts of these vessels was entailed upon Great 
Britain," 9 and asked the Tribunal at Geneva to make an award 
in gross, and, in considering its amount, to take into account 
the losses of individuals in the destruction of their vessels and 
cargoes by the Sumter, 10 Nashville, 11 Ketribution, 12 Talla- 
hassee, 13 etc. 

The Government, after having so definitely and completely 
endorsed and insisted upon this obligation to its citizens, could 
not, in a settlement with those citizens, have ignored this obli- 
gation. 

THIRD. 

Insurance Companies would not have received a dollar; for 
their claims upon the Government for compensation, where 
property on which they had paid the insurance has been lost or 
destroyed, "have always been dismissed, on the ground that 
they were paid for the risk, and could not ask the Government 
to hold them harmless." 1 4 

3. Same, Vol. 3, pp. 533, 534. 

4. Same, Vol. 1, p. 226. 

5. Same, Vol. 1, p. 292. 

6. Same, Vol. 1, p. 242. 

7. Same, Vol. 1, p. 292 ; Vol. 3, p. 533. 

8. Papers relating to Treaty of Washington, Vol. 3, pp. 196, 209. 
9" American Case, p. 163. 

10. Same, p. 132. 

11. Same, p. 133. 

12. 8ame, p. 156. 

13. Same, pp. 164, 165. 

14. Letter from W. B. Washburn, 



37 



FOURTH. 



The Government, "by such settlement, and making full indem- 
nity for all the loss to individuals caused by all the rebel 
cruisers, would have paid out millions of dollars less than it has 
since received as indemnity from England; for all the actual 
unindemnified loss caused by all those cruisers, not included in 
the rules of international obligation established by the Geneva 
Tribunal, does not exceed $1,200,000, while the Tribunal justly 
awarded to the nation indemnity for all the property destroyed 
by the cruisers which were included in those rules, deducting 
nothing for the indemnities which individuals had received, 
which amount to about $5,750,000. 

Thus the Government has in its possession money, received as 
indemnity for England's fault, sufficient to pay its citizens for 
all their losses directly resulting from that fault, and at least 
$4,500,000 more, which, if its original obligation has not been 
changed by subsequent negotiations, the Goverment is at liberty 
to disburse to those who suffered less directly from England's 
wrong, but to which Insurance Companies can make no claim. 

Have subsequent negotiations changed the obligation ? Does 
the fact that England has indemnified this nation for a wrong to 
itself, which was no wrong, but a benefit to insurers, create an 
obligation, which did not before exist, to hold insurers (who were 
paid their own price for the risks they took) harmless from the 
consequences of their own voluntary act ? Especially, when the 
Tribunal which awarded the indemnity rejected the claim of 
insurers, and enunciated a broad principle which must always 
exclude them, in these words: 

"Wheteas, in otdet to arrive at an equitable compensation fot 
the damages which have been sustained, it is necessary to set 
aside all double claims for the same losses." 1 6 

Has the surrender by our Government, for its own benefit, of 
the principal foundation for the claims of its citizens, and the 
set.lement, so advantageous to itself — which cancels and bars 
those claims against England, and transfers the obligations to 
this country — relieved the Government from its obligation, which 
did before exist, to settle with those citizens ?"* 6 

Although the President and Senate alone have exclusive 
jurisdiction over international questions, and the undoubted 
right to surrender for the public benefit any claim of private 
citizens as against a foreign power, have they alone any legisla- 
tive authority ? 

15. Papers, etc., Vol. 3, p. 223 ; Vol. 2, p. 216 ; and " Short HiBtory of 
Long Negotiations." 

16. Award of the Tribunal. 



38 

Would such surrender cancel the claim, or only transfer the 
obligation to this nation ? 

Could the President and Senate alone make or change any 
law touching the obligation of the Government to the people? 

Could they delegate to a Tribunal any power which they 
themselves did not possess ? 

If not, could the Tribunal at Geneva make any law for the 
distribution of its award which would be binding upon the 
Congress or courts of the United States? 

Did the Government of the United States, in matters relating 
to the Treaty of Washington, act for itself, to protect its own 
dignity, honor and interests, and establish great principles of 
international law and and precedents, which shall benefit its 
people and all peoples for all time ; or, did it act simply as an 
attorney, employed by certain individuals who had, or fancied 
they had, sundry claims against England? 

If the first, its success was complete and glorious, one in 
regard to which every American may rejoice and be proud ; if 
the second, only partial, and at best of slight importance. 

Which view of the case will Congress take, in its legislation 
for the distribution of the Geneva Award ? 

If an attorney, it may say to certain of its clients : "Your bill 
is collected — here is your money;" and to others ; "Your bill was 
not collected ; there is nothing for you." 

The disappointed client may ask; "Why not? Was not my 
loss as real and my claim as just as that of him you paid ?" 

"Oh, yes ! and even more so," attorney replies ; " but, for cer- 
tain reasons of great importance to myself, it was thought not 
best to have judgment issue for such claims as yours - " 

If an attorney, a selfish and dishonest one! Every honorable 
impulse, says No! Not an attorney, acting for a few individuals; 
but a great nation, acting for itself and for humanity! 

I have expressed these views as a business man. I feel sure 
that the business men of the country will endorse them. 

E. W. Metcalf, 

Builder of Ship Delphine. 



GENEVA AWARD. 

TWO FACTS AND TWO QUESTIONS. 



BY E. W. METCALF. 



The Georgia and the Shenandoah were exclusively English in 
their construction, armament and outfit. 

All the officers and crew of both were shipped in England. 

Each sailed from England on a warlike expedition ivith 
evil intent, and each returned to her home in England to 
discharge her crew. 

Neither was ever in a Confederate port. 

" The entire crew of the Georgia, except two, one a Swede the 
other a Kussian, were Englishmen."* 

Nearly all the officers and crew of the Shenandoah were Eng- 
lishmen, and so many of them were those wrongfully rescued by 
Englishmen from death or capture when the Alabama was 
destroyed,! and whose surrender as prisoners of war was 
refused by England when justly demanded by Mr. Adams, J that 
had she been deprived of them, she coujd not have sailed. 

Nothing could have relieved England from being held by the 
Tribunal derelict as regards both these cruisers, from the first, 
but absence of proof that English officials knew in time their 
character and intent. 

" Information about the construction and outfit of the Geor- 
gia had for a long time been in the possession of Mr. Adams." 
" Mr. Dudley knew of the hiring of seamen for her."§ " No 
communication was made by Mr. Adams to Her Majesty's Gov- 
ernment until six days after the ship had sailed."§ 

" No representations had been made to Her Majesty's Govern- 
ment'^ until ten days alter the Shenandoah had sailed, although 
she had been the subject of several letters between United 
States officials.JJ 

* Quotations and note in Short History of Long Negotiations, pp. 6 to 10. 

f Report of Captain Winslow, "Alabama Claims," Documents, Corre- 
spondence, &c. , vol. 3, p. 262. 

% Adams' Letter to Earl Russell, and Reply, same, pp. 295 and 299. 

§ Quotations from British case in Short History of Long Negotiations, 
pp. 26 and 27. 

\ X Alabama Claims and their Settlement. By Chas. C. Beaman, p. 108. 



40 

■ CM. ■ 

When the Shenandoah was in Melbourne, United States 
Consul Blanchard protested against permitting her to receive 
assistance there, or to depart, and promptly furnished evidence 
against her to the authorities. 

Consul Blanchard's protest at Melbourne availed nothing to 
prevent the wrong. If Mr. Adams had protested at London, it 
would probably have availed as little, although the British coun- 
sel said to the Tribunal at Geneva: "The complaints of the 
United States might not have been necessary, if Mr. Adams had 
communicated in good time such information as he possessed."§ 

Mr. Blanchard's protest and evidence did avail to the holding 
England responsible by the Tribunal. The protest and evidence 
of Mr. Adams would probably have availed as much, for when 
all the men and all the coal the Shenandoah carried had been 
shipped in England, and she was wholly English, could shipping 
a few more men and a few more tons of coal in a distant colony 
of England make her any more English ? 

Does the consequence of the fact that our Minister at London 
was " not much disposed to waste anymore discussion,"|| and did 
not protest, while our consul at Melbourne did protest, change 
the relation's of our Government to its citizens who suffered? 
If not, can a distinction be made in distributing a fund received 
as indemnity to the Government for injuries suffered by its citi- 
zens through England's fault, between injuries by the Georgia or 
the Shenandoah before Melbourne and those by the Shenandoah 
after Melbourne, especially when that construction of the three 
rules by the Tribunal which declares England not derelict as re- 
gards apart of the cruisers, so lessens our liabilities in the future 
as to be worth to our Government many times the comparatively 
small amount of loss occasioned by all those cruisers,!" and 
when the fund is abundantly sufficient to indemnify all who 
suffered by that fault ? 

H Letter from Minister Adams to Secretary Seward, papers relating to 
Treaty of Washington, vol. 2, p. 516. 

Tl Short History of Long Negotiations, p. 27. 



LIBRARY OF CONGRESS 




